Schoolwide policies that address digital recording of classroom lectures are getting a closer look at some higher education institutions after a recent incident at Orange Coast College (OCC) in Costa Mesa, California, where a student was initially suspended for secretly recording a video of his professor’s strongly worded criticism of then President-elect Donald J. Trump during class. After the video was posted online by the OCC College Republicans, the professor received a flood of critical emails and social media posts from individuals who disagreed with her political views. Some of these were violent and threatening, causing the professor to hand over the class to a substitute and temporarily flee her home. OCC found that the student violated a broadly worded campus policy against unauthorized recording and use of an electronic device in the classroom and suspended him. The student then appealed and the suspension was lifted. With free speech a highly charged issue on campuses, colleges and universities may find this a fitting time to revisit internal policies that address the recording of classroom lectures. This article discusses some issues that a higher education institution may consider with respect to its classroom recording policy, taking into account copyright law, privacy laws and regulations that protect various forms of sensitive information, reasonable accommodations to students with disabilities, and the broader context in which such a policy will be implemented. It will also consider specific classroom recording policies at a public and a private institution of higher education.
U.S. Copyright Law
In the United States, copyright protection attaches to an original work of authorship that is fixed in a tangible medium of expression, 17 U.S.C. Section 102. When an instructor prepares a written lecture, copyright protection attaches to that lecture. Depending on the intellectual property policy of the institution, the lecture is generally either the property of the institution or the instructor. Either way, the copyright owner’s intellectual property rights are implicated when the instructor reads the lecture aloud. If a student records and distributes a lecture without permission from the copyright owner, the student violates the copyright owner’s exclusive rights. Reproducing copyrighted material without permission may lead to serious civil and criminal penalties for the student.
